Kinlein v. Mayor of Baltimore

Burke, J., delivered the opinion of the Court. On the 20th day of June, 1912, the appellants on this record filed in the Court of Common Pleas a petition praying that a writ of mandamus be issued directed to the Mayor and City Council of Baltimore, and the Board of Estimates of the city commanding them to make a special levy upon the taxable property of Baltimore City in a sufficient amount to pay a certain judgment mentioned in the petition. ⁵⁷⁸ The Mayor and City Council answered the petition, and assigned various reasons why the writ should not he issued. The appellants demurred to the entire answer, and also to each separate paragraph thereof. The Court overruled the demurrer to the whole answer, and also overruled the demurrer to the fifth, sixth and seventh paragraphs; hut sustained it as to the eighth and ninth paragraphs.

The cause was then submitted to the Court upon the admissions of the pleadings, and on the 17th day of September, 1912, the Court dismissed the petition and entered a judgment for the respondents for costs. The appeal before us was taken by the petitioners from that judgment. The appellants, Julius A. Kinlein, Joseph J. Kinlein and Julius Stengel, co-partners, trading as J. A. Kinlein & Company, recovered a judgment in the Court of Common Pleas against the Mayor and City Council of Baltimore on the 2nd day of December, 1911, for the sum of nine hundred and fifty dollars. On the date the petition was filed the judgment, interest and costs amounted to $1,024.20.

It is alleged in the petition that the Mayor and City Council had not paid this judgment or any part thereof, although it had been repeatedly requested to do so, and that it showed no- disposition whatever to pay the judgment; that on several occasions on which requests had been made that it pay the judgment, “it was asserted, through the office of the City Solicitor, that there were no funds out of which this judgment, interests and costs could be paid.” The answer of the respondent admitted all the allegations of the petition, except the one that the Mayor and City Council “shows no disposition whatever to liquidate said judgment.” This allegation is directly denied. There is, therefore, upon the pleadings no evidence of a refusal on the part of the City to pay the judgment, nor are there any circumstances which clearly evince an intention on its part not to pay. On the contrary, the answer proceeded-to give a full explanation of its failure to pay the petitioners’ ⁵⁷⁹ claim. After setting out several reasons why the claim had not been paid, the seventh paragraph of the answer contains the following averments: “7.

That further answering said petition your respondent shows that the judgment herein referred to was entered up subsequent to the making up of the ordinance of estimates by said Board of Estimates and the introduction of the same for passage into the City Council. “That in fact said ordinance of estimates was approved after its passage by the Council only two days after the date of the entering of the judgment herein referred to. And your respondent avers that said ordinance of estimates fixed and established its tax rate for the year 1912; that after the passage and approval of said ordinance your respondent was and is without power or authority to enlarge or increase any of the appropriations therein made to provide for the discharge and satisfaction of the judgment referred to herein, and the amounts in said ordinance appropriated to the law department and Board of Estimates are, as already stated, entirely inadequate and insufficient to discharge the judgment referred to, without greatly hampering and embarrassing it in the prosecution of its usual duties and the discharge of its financial obligations.” Under section 36, Article 4 of the Code of Public Local Laws, title “City of Baltimore,” sub-title “Charter,” as amended by the Act of 1904, Chapter 677, it is made the duty of the .Board of Estimates annually between the first day of October and the first day of Kovember to make three money lists, which shall embrace all monies to be expended for the next ensuing fiscal year for all purposes by the City, and to cause to be prepared a draft of an ordinance to be submitted to the City Council providing appropriations sufficient to meet the amounts called for by said lists. We said in Baltimore City v. Gorter, 93 Md. 1 , that the evident object of the Board of Estimates as a feature of the Charter was to provide a more orderly administration of the finances of the City, to secure more deliberation and careful judgment as to the expenditure of the public money, and ⁵⁸⁰ greater watchfulness over and economy in making this expenditure; thereby avoiding, as far as practicable, unnecessary taxation and accumulation of debt by reason of unsystematic methods.” It is the duty ,of the City to